A colleague mediated a litigated case this past summer, that did not result in an agreement. Last week my colleague received a court order in the case, as follows:

It is ordered that the mediator who conducted the parties’ mediation on July __, 2017, shall inform the court as to:

• Whether opposing counsel was prepared in good faith;
• whether opposing counsel was late or not;
• whether opposing counsel submitted a mediation brief;
• whether the lack of a mediation brief hindered his ability to do his job as mediator;
• whether either attorney has contacted the mediator after the mediation.

Everyone is frustrated when an hours-long mediation fails to result in an agreement. It’s tempting to blame opposing counsel, and sometimes it’s appropriate. If opposing counsel was indeed late, was not prepared in good faith, and failed to submit the required mediation brief, it could have hindered the effectiveness of the mediation, and resulted in a waste of time for all concerned. The judge ought to know, so the offending attorney can be “punished,” right?

But is mediator “tattling” the way to address this?

Having the mediator answer the above questions gets dangerously close to having the mediator reveal confidential communications, which could undermine trust in the mediation process altogether. And mediators who testify even about non-confidential aspects of the mediation risk losing their reputation for neutrality.

It doesn’t seem like anything good can come from a mediator answering these questions for the court.

So how should a mediator respond to an order like this? My colleague plans to tell the court he will not answer the questions, in hopes everyone will drop it and focus on their real issue, the dispute at hand.